Real estate
House
property sale process
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The statutory regulations on estate agent commission since 2020 envisage a fair distribution between buyer and seller, with the seller required to bear at least half of the commission.
There are various commission models (double commission, passing on, sole commission), and the amount of commission is negotiable. A professional negotiation can optimise the selling price by up to 5%.
A real estate sale without an agent saves costs but requires significant time and expertise. Alternatively, hybrid models or online platforms can be used to support the sales process.
A property sale can be complex, but with the right preparation and understanding of the individual steps, it goes smoothly. This guide provides you with a comprehensive overview of the entire process of selling a property in Germany, from the initial valuation to the handover of keys. We show you how to assess your property's value optimally, which legal aspects you need to consider, and how to efficiently organise the sales process.
The broker's commission plays a central role. Since the change in legislation in 2020, there are new regulations regarding the division of the commission between buyer and seller. We explain the different commission models and show you how to find the most advantageous solution for you. Learn how to negotiate the broker's commission and which factors can influence the price. A professional real estate agent can help you achieve the best price and optimise the sales process.
Since 23 December 2020, §§ 656a to 656d BGB have redefined the distribution of the broker's commission in the sale of single-family and two-family houses as well as condominiums. This legislative amendment is primarily aimed at relieving private buyers and reducing incidental costs in real estate acquisition. The most significant change is that the seller must bear at least half of the commission if they have engaged the broker. A complete transfer of the brokerage fee to the buyer is no longer permissible. The Haufe website provides detailed information on this.
§ 656a BGB stipulates the written form requirement for brokerage contracts. This means that oral agreements are no longer sufficient. The contract must be concluded at least by email, fax, or SMS. § 656b BGB defines the personal scope of the new regulations. They apply only if the buyer is a consumer. For commercial buyers, individual agreements can still be made. § 656c BGB regulates the entitlement to commission if the broker is acting for both parties. In this case, the buyer and seller must share the commission equally. § 656d BGB addresses agreements concerning the payment of the brokerage fee when only one party has engaged the broker. Here, a partial transfer of costs to the other party is possible, but a maximum of up to half of the total commission. The Sack Immobilien website offers further details on this.
The so-called 'Bestellerprinzip', which applies to the rental of flats (whoever orders the broker pays), has not been fully adopted for property sales. Instead, a regulation was established that provides for a fair distribution of the brokerage fee between buyer and seller. This is intended to ensure that both parties share the costs equally and reduce the financial burden on the buyer. Further information on brokerage fees in house sales can be found in our internal article.
When it comes to selling property, there are various commission models that differ in how the broker's commission is divided between buyer and seller. The most common models are the double commission, the allocation, and the sole commission. Each model has its advantages and disadvantages, and the choice of the right model depends on individual circumstances and preferences.
With the double commission, the broker agrees a commission with both parties, buyer and seller. In this case, both parties usually pay an equal share of the commission. An advantage of this model is that the broker has an interest in considering the interests of both the buyer and the seller. A disadvantage can be that both parties must pay a commission. The Immoverkauf24 page offers more details about this.
The allocation is a model in which the seller initially takes on the full commission but transfers part of it to the buyer. Legally, this stipulates that the seller's share must be at least as high as the buyer's share. This model is often chosen when the seller has engaged the broker and wishes to pass on part of the costs to the buyer. The legal framework for this is set out in §§ 656a to 656d BGB.
With the sole commission, either the buyer or the seller pays the entire commission. A distinction is made between the internal commission, where the seller pays the commission, and the external commission, where the buyer pays the commission. However, the external commission is subject to certain conditions. The buyer must issue the broker a search mandate before the broker has acquired the property. This ensures that the buyer has indeed commissioned the broker and is not merely benefiting from their activities.
Internal Commission (Seller pays)
With the internal commission, the seller takes on the full broker's commission. This is often the case when the seller has engaged the broker and does not wish to pass the costs onto the buyer. The internal commission is common in some federal states.
External Commission (Buyer pays) – Specific Requirements for the Search Mandate
The external commission is a model where the buyer pays the entire broker's commission. However, this is only permissible if the buyer has issued the broker a search mandate before the broker has acquired the property. The search mandate must be in writing and include the buyer's exact search criteria. The broker must be able to prove that they found the property as a result of the buyer's search mandate. Otherwise, the agreement of an external commission is invalid. The brokerage costs in a house sale can vary significantly, depending on the chosen model.
The amount of the brokerage commission is not uniformly regulated and varies depending on the federal state. There are standard commission rates that are oriented to the regional market situation. It is important to know these regional differences in order to better estimate the expected costs. Additionally, the brokerage commission is negotiable, and there are strategies to influence the commission.
In most federal states, such as Baden-Württemberg, Bavaria, Berlin, Brandenburg, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, and Thuringia, the usual total commission is 7.14% (including VAT), which is generally split between buyer and seller (3.57% each). In Bremen, the usual commission is slightly lower at 5.95% (including VAT), also divided between buyer and seller (2.98% each). In Hesse and Lower Saxony, there are no fixed commission rates, but rather variable rates that depend on the market situation.
Baden-Württemberg, Bavaria, Berlin, Brandenburg, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, Thuringia (typically 7.14%)
In these federal states, a commission of 7.14% is usual, with buyers and sellers typically sharing the costs. However, it is important to note that this is only a guideline, and the actual commission may vary depending on the individual case.
Bremen (typically 5.95%)
In Bremen, the standard commission is slightly lower than in most other federal states. Here too, the commission is negotiable and may depend on individual circumstances.
Hesse and Lower Saxony (variable rates)
In Hesse and Lower Saxony, there are no fixed commission rates. The amount of the commission is individually agreed upon and depends on the market situation, the type of property, and the services of the broker.
Negotiation Tips: How to Influence the Brokerage Commission
The brokerage commission is negotiable, and there are various factors that can influence your negotiating position. An important point of reference is the so-called 'local customary'. This is the usual commission rate in the respective region. A broker can demand a higher commission, but you have the right to refer to the local customary and request an adjustment. The ImmobilienScout24 page provides further details on this.
As a seller, you have more negotiating leeway if your property is easy to sell and there is high demand. In this case, you may be able to negotiate a lower commission. As a buyer, you have more room for negotiation if the property is difficult to sell, for example due to defects or an unfavourable location. In such cases, you can try to reduce the commission or reach a different agreement. It is advisable to discuss the brokerage commission openly with the broker before signing a contract. Clarify all details and negotiate the most favourable solution for you.
The broker commission typically becomes due after the notarial purchase contract has been signed. However, there are also cases where the commission is due earlier, such as with a binding purchase offer. It is important to know the exact payment terms in the brokerage contract to avoid misunderstandings. Additionally, there are situations where a commission demand is unjustified. It is crucial to be aware of these cases to protect yourself from unwarranted claims.
The due date of the commission is usually linked to the conclusion of the purchase contract. The broker has fulfilled their claim to the commission if they have successfully facilitated the contract conclusion. The due date is specified in the brokerage contract. Generally, the commission becomes due within two weeks after signing the purchase contract. However, there are cases where the commission is already due at a binding purchase offer if both parties have signed it. Therefore, it is important to carefully review the brokerage contract and be aware of the payment terms.
There are various reasons that can make a commission demand unjustified. A common reason is that the contract was concluded without the involvement of the broker. For example, if you found the property yourself or the seller directly sold the property to you without the broker providing a facilitation service, the commission demand is unjustified. Another reason is if the broker has not delivered the contractual services agreed upon. If, for instance, the broker did not conduct any viewings or did not provide sufficient information about the property, the commission demand might be unjustified. Another important point is the lack of information about the right of withdrawal in distance selling contracts. If you concluded the brokerage contract online or over the phone, you are entitled to a right of withdrawal. If the broker did not properly inform you about your right of withdrawal, the contract may be invalid, and you would not be required to pay a commission. You should also be aware of the advantages and disadvantages of selling a property without a broker.
If you purchase a property as a landlord and pay a brokerage fee, you can claim this for tax purposes. The brokerage fee is treated as acquisition incidental costs and can be depreciated over the property's useful life. It is important to differentiate the brokerage fee from direct advertising costs, as they are treated differently.
The brokerage fee you pay when buying a property to let is considered part of the acquisition costs. These costs cannot be deducted in full immediately but must be depreciated over the property's useful life. The useful life depends on the type of property and is usually 50 years for residential buildings. This means you can claim 2% of the acquisition incidental costs (including the brokerage fee) as depreciation each year.
It is important to distinguish the brokerage fee from direct advertising costs. Advertising costs are expenses directly related to the rental of the property, such as advertising costs or costs for drafting rental agreements. These costs can be fully deducted in the year they are incurred. The brokerage fee, on the other hand, is part of the acquisition costs and must be depreciated over the useful life. It is advisable to consult a tax advisor to optimise the tax benefits.
Selling property without an estate agent can be an attractive option for saving costs. However, it is important to carefully weigh the pros and cons. A commission-free sale requires significant time investment and expertise in various areas. There are also alternatives to a traditional estate agent, such as hybrid models and online platforms, which can offer support in the sales process.
The biggest advantage of a commission-free sale is the cost saving. You avoid the estate agent's commission, which can amount to several thousand euros depending on the federal state and commission model. Additionally, you have full control over the sales process. You set the sale price, conduct the viewings yourself, and negotiate directly with the interested parties. This can be advantageous if you have specific ideas and wish to actively shape the sales process.
One disadvantage of a commission-free sale is the high time investment. You must handle all tasks usually managed by an estate agent, such as creating a brochure, conducting viewings, negotiating with interested parties, and preparing the sale contract. Additionally, you require marketing expertise to successfully market your property. You need to know how to create appealing photos, write a convincing description, and present your property on the relevant online platforms. If you have limited time or expertise, a commission-free sale can be very demanding. However, there are also alternatives to a traditional estate agent. Hybrid models, for example, offer a combination of online platform and personal advice. You can undertake certain tasks yourself and get expert support for other tasks. Online platforms give you the opportunity to list your property and find interested parties. You can also book additional services, such as creating a brochure or conducting viewings. Choosing the right model depends on your individual needs and preferences.
The regulations concerning estate agent commission differ depending on whether it is a commercial property or a rental property. Different commission agreements apply to commercial properties than to residential properties. For rental properties, the so-called ordering principle applies, which states that the person who hires the broker pays the commission.
For commercial properties, there are no statutory regulations regarding the amount of the estate agent commission. The commission is freely agreed upon here and depends on various factors, such as the type of property, location, and the services provided by the agent. It is common for the landlord to pay the commission, but other agreements are also possible. It is important that the commission agreement be made either in writing or orally. However, the agent must explicitly inform the client about the commission agreement to ensure its effectiveness.
For rental properties, the ordering principle applies. This means the person who hires the broker pays the commission. Generally, this is the landlord. The maximum commission for the tenant is two net cold rents plus VAT. However, the landlord has room for negotiation regarding the commission. They can reduce or wholly cover the commission. It is important that the commission agreement be documented in writing to avoid misunderstandings. The Auctoa site offers you comprehensive information and support in assessing and marketing your property.
The broker's commission is an important aspect of real estate sales. It's crucial to understand the legal regulations, the various commission models, and regional differences to make the best decision for you. Discuss the commission openly with the broker and seek advice from an expert to protect your interests.
The key points regarding the broker's commission can be summarised as follows: Since 2020, there are new legal regulations regarding the sharing of the commission between buyer and seller. There are different commission models, such as the double commission, the passing on, and the sole commission. The amount of the commission varies depending on the federal state and is negotiable. The commission is usually due after the purchase contract has been signed. There are cases where a commission claim is unjustified. Landlords can claim the broker's commission for tax purposes. Selling real estate without a broker can be an option but requires a considerable amount of time and expertise. Special commission rules apply to commercial properties and rental objects.
The future of the real estate market is influenced by various trends, such as digitalisation, demographic changes, and rising energy prices. It's important to keep an eye on these developments to make the right decisions. Auctoa assists you in determining the optimal value of your property and making the sales process efficient. Contact us today to learn more about our services and make your real estate sale successful. Get in touch now!
The Haufe portal provides detailed information on the legal changes in brokerage law since 2020.
The ImmobilienScout24 page offers further details and tips for negotiating the broker's commission.
What role does the estate agent's commission play in property sales?
The estate agent's commission is an important cost factor in property sales. Since 2020, new legal regulations have been in place that provide for a fair distribution between buyer and seller. Sellers must bear at least half of the commission if they have engaged the agent.
What does the text form requirement mean for estate agent contracts?
§ 656a of the German Civil Code (BGB) requires written form for estate agent contracts. This means that verbal agreements are no longer sufficient. The contract must be concluded at least by email, fax, or SMS to be valid.
What commission models exist in property sales?
The most common models are the double commission, the shift, and the exclusive commission. In the double commission model, both the buyer and seller each pay a part, in the shift model, the seller transfers part of his commission to the buyer, and in the exclusive commission model, either the buyer or the seller pays the entire commission.
How can I negotiate the estate agent's commission?
The estate agent's commission is negotiable. As a seller, you have more room to negotiate if your property is easily sellable. As a buyer, you can negotiate if the property is hard to sell. Inform yourself about the local commission and discuss the details openly with the agent.
When is the estate agent's commission due?
The estate agent's commission is generally due after the notarial purchase contract has been signed. The exact payment terms are specified in the agent's contract. However, there are also cases where the commission is due upon a binding offer to purchase.
Can I deduct the estate agent's commission as a landlord for tax purposes?
Yes, if you acquire a property as a landlord and pay an estate agent's commission, you can claim this for tax purposes. The estate agent's commission is treated as acquisition costs and can be depreciated over the useful life of the property.
What are the pros and cons of selling a property without an agent?
A property sale without an agent saves costs but requires a significant amount of time and expertise. You have full control but must handle all tasks yourself, from creating the property listing to negotiating with interested parties.
What special considerations apply to commercial properties and rental properties?
For commercial properties, there are no legal regulations regarding the amount of the estate agent's commission. For rental properties, the principal's principle applies, which states that the one who commissions the agent must pay the commission.
